NY State Senate Bill 2019-S1748

Senate Bill S1748

2019-2020 Legislative Session

Requires court to advise aliens of deportation consequences of guilty plea; allows guilty plea withdrawal

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to codes
Jan 16, 2019	referred to codes

co-Sponsors

2019-S1748 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§170.10, 180.10 & 210.15, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3154
2011-2012: S350
2013-2014: S860
2015-2016: S596
2017-2018: S4958, S8692
2021-2022: S3004

2019-S1748 (ACTIVE) - Summary

Requires a court to advise a defendant that if he or she is an alien and he or she is convicted of a crime, whether by plea or trial, such conviction may result in his or her deportation; allows a withdrawal of a plea of guilty by an alien if such alien is threatened with deportation and such alien is not so advised of such threat of deportation.

2019-S1748 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S1748

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to requiring an
advisement by the court regarding the possible consequences to an alien
of the acceptance of a plea of guilty to a crime under state law

 
PURPOSE OR GENERAL IDEA OF BILL:

Requires that an alien who is a defendant in the criminal justice system
be warned that the acceptance of a guilty plea may be grounds for depor-
tation, exclusion from admission to the United States, or denial of
naturalization.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Legislative Findings and Declaration

Section 2. Amends the Criminal Procedure Law, Section 170.10 subdivision

4 by adding two new paragraphs (t) and (g). Provides that before a guil-
ty plea is accepted by an alien, the court shall inform the defendant
that acceptance of a guilty plea or conviction may result in such
defendant's deportation, exclusion from admission to the United States,
or denial of naturalization. Provides that upon request, the court shall
allow the defendant additional time to consider the appropriateness of
the plea in light of the advisement.

Section 3. Amends the Criminal Procedure Law, Section 180.10 by adding a
new subdivision 7. Provides that before an alien accepts a guilty plea,
the court shall inform the defendant that acceptance of a guilty plea or
conviction may result in such defendant's deportation, exclusion from
admission to the United States, or denial of naturalization. Provides
that upon request, the court shall allow the defendant additional time
to consider the appropriateness of the plea in light of the advisement.

Section 4. Amends the Criminal Procedure Law, Section 210.15 by adding a
new subdivision 4. Provides that if the Court fails to so advise the
defendant, such defendant will have the right to withdraw the guilty
plea. Absent an official record in the court file that the court
provided the advisement as prescribed, the defendant shall be presumed
not to have received the advisement. Allows the court to set aside the
judgment and permit the defendant to withdraw the plea - Provides that
the defendant shall not be required at any time during the proceedings
or at the time of the plea to disclose his or her legal status.

Section 5. Effective Date

 
JUSTIFICATION:

Many individuals who are not citizens and are accused of a crime under
State law are not aware of the fact that acceptance of a guilty plea
could constitute grounds for deportation, exclusion from admission to
the United States, or denial of naturalization. Allowing any such guilty
pleas taken in ignorance of major consequences constitutes a denial of
elementary concepts of fairness and may constitute a denial of due proc-
ess.

 
PRIOR LEGISLATIVE HISTORY:

2014: S.860 - Referred to Codes / A.5279 - Referred to Codes
2013: S.860 - Referred to Codes / A.5279 - Referred to Codes
2012: S.350: Referred to Judiciary
2011: S.350 - Notice of Committee Consideration Requested, Committee
Discharged, Committed to Judiciary
2009-10: S.31548 - Amend and Recommit to Codes/A.5883B - Amend and
Recommit to Rules
2007-08: S.776 - Referred to Codes/A.5191 - Held for Consideration in
Codes
2005-06: S.829 - Referred to Codes/A.4100 - Referred to Codes
2003-04: S.3826 - Motion to Petition Lost/A.5267 - Referred to Codes
2016: referred to codes
2018: referred to codes

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law.

2019-S1748 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1748
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 16, 2019
                                ___________
 
 Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN  ACT to amend the criminal procedure law, in relation to requiring an
   advisement by the court regarding  the  possible  consequences  to  an
   alien of the acceptance of a plea of guilty to a crime under state law

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.   Legislative finding and  declaration.    The  legislature
 finds and declares that in many instances involving an individual who is
 not a citizen of the United States charged with an offense punishable as
 a crime under state law, a plea of guilty is entered without the defend-
 ant  knowing  that  a conviction of such offense is grounds for deporta-
 tion, exclusion from admission to the United States, or denial of natur-
 alization pursuant to the laws of the United States.   Therefore, it  is
 the  intent  of the legislature by enacting this act to promote fairness
 to such accused individuals by requiring in such cases  that  acceptance
 of  a  guilty  plea be preceded by an appropriate warning of the special
 consequences for such a defendant which may result from the plea.  It is
 also the intent of the legislature that the court in  such  cases  shall
 grant  the  defendant  a reasonable amount of time to negotiate with the
 prosecutor in the event the defendant or  the  defendant's  counsel  was
 unaware  of  the possibility of deportation, exclusion from admission to
 the  United  States,  or  denial  of  naturalization  as  a  result   of
 conviction. It is further the intent of the legislature that at the time
 of  the plea no defendant shall be required to disclose his or her legal
 status to the court.
   § 2.  Subdivision 4 of section 170.10 of the criminal procedure law is
 amended by adding two new paragraphs (f) and (g) to read as follows:
   (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
 INFORMATION OR A MISDEMEANOR COMPLAINT, BEFORE ACCEPTING A PLEA OF GUIL-
 TY TO ANY OFFENSE PUNISHABLE AS A CRIME UNDER STATE LAW, THE COURT SHALL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07275-01-9

 S. 1748                             2
 
 ADDRESS THE DEFENDANT PERSONALLY IN OPEN COURT,  ON  THE  RECORD,  UNDER
 OATH, INFORMING HIM OR HER OF AND DETERMINING THAT HE OR SHE UNDERSTANDS
 THE  FOLLOWING:  "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE
 HEREBY  ADVISED  THAT  ACCEPTANCE  BY  THE  COURT OF A PLEA OF GUILTY OR
 CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED  MAY  RESULT  IN
 YOUR  DEPORTATION,  EXCLUSION  FROM  ADMISSION  TO THE UNITED STATES, OR
 DENIAL OF NATURALIZATION PURSUANT TO THE LAWS  OF  THE  UNITED  STATES."
 ABSENT  A RECORD THAT THE COURT PROVIDED THE ADVISEMENT REQUIRED BY THIS
 PARAGRAPH, THE DEFENDANT SHALL BE PRESUMED  NOT  TO  HAVE  RECEIVED  THE
 REQUIRED ADVISEMENT.
   (G)  UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL TIME
 TO CONSIDER THE APPROPRIATENESS OF THE PLEA IN LIGHT OF  THE  ADVISEMENT
 AS DESCRIBED IN PARAGRAPH (F) OF THIS SUBDIVISION.
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.    BEFORE ACCEPTING A PLEA OF GUILTY TO ANY OFFENSE PUNISHABLE AS A
 CRIME UNDER STATE LAW, THE COURT SHALL ADDRESS THE DEFENDANT  PERSONALLY
 IN  OPEN  COURT,  ON THE RECORD, UNDER OATH, INFORMING HIM OR HER OF AND
 DETERMINING THAT HE OR SHE UNDERSTANDS THE FOLLOWING:  "IF YOU ARE NOT A
 CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE  BY
 THE  COURT  OF A PLEA OF GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU
 HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, EXCLUSION FROM  ADMIS-
 SION  TO  THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE
 LAWS OF THE UNITED STATES."  ABSENT A RECORD THAT THE COURT PROVIDED THE
 ADVISEMENT REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL BE PRESUMED
 NOT TO HAVE RECEIVED THE REQUIRED ADVISEMENT.
   UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL  TIME  TO
 CONSIDER  THE  APPROPRIATENESS OF THE PLEA IN LIGHT OF THE ADVISEMENT AS
 DESCRIBED IN PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OF THIS
 TITLE.
   § 4. Section 210.15 of the criminal procedure law is amended by adding
 a new subdivision 4 to read as follows:
   4. UPON ARRAIGNMENT ON AN INDICTMENT, AND PRIOR  TO  ACCEPTANCE  OF  A
 PLEA  OF  GUILTY  TO  ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN
 ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED  TO  SUBSTAN-
 TIALLY  THE  FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT
 AND PLACED UPON THE RECORD:  "IF YOU ARE NOT A  CITIZEN  OF  THE  UNITED
 STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF
 GUILTY  OR  CONVICTION  OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY
 RESULT IN YOUR DEPORTATION,  EXCLUSION  FROM  ADMISSION  TO  THE  UNITED
 STATES,  OR  DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED
 STATES."   ABSENT A  RECORD  THAT  THE  COURT  PROVIDED  THE  ADVISEMENT
 REQUIRED  BY  THIS  SUBDIVISION,  THE DEFENDANT SHALL BE PRESUMED NOT TO
 HAVE RECEIVED THE REQUIRED ADVISEMENT. IF THE COURT FAILS TO  SO  ADVISE
 THE  DEFENDANT,  AND  HE  OR SHE LATER AT ANY TIME SHOWS THAT HIS OR HER
 PLEA AND CONVICTION MAY HAVE OR HAS HAD ONE  OF  THE  ENUMERATED  CONSE-
 QUENCES, EVEN IF THE DEFENDANT HAS ALREADY BEEN DEPORTED FROM THE UNITED
 STATES,  THE COURT, ON THE DEFENDANT'S MOTION, SHALL VACATE THE JUDGMENT
 AND PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY OR ADMISSION  OR
 SUFFICIENT  FACTS,  AND  ENTER A PLEA OF NOT GUILTY.  ABSENT AN OFFICIAL
 RECORD IN THE COURT FILE THAT  THE  COURT  PROVIDED  THE  ADVISEMENT  AS
 PRESCRIBED  IN THIS SECTION, THE DEFENDANT SHALL BE PRESUMED NOT TO HAVE
 RECEIVED ADVISEMENT. AN ADVISEMENT PREVIOUSLY OR  SUBSEQUENTLY  PROVIDED
 TO  THE  DEFENDANT  DURING  ANOTHER  PLEA COLLOQUY SHALL NOT SATISFY THE
 ADVISEMENT REQUIRED BY THIS SECTION, NOR SHALL IT BE USED TO PRESUME THE
 DEFENDANT UNDERSTOOD THE PLEA OF  GUILTY,  OR  ADMISSION  TO  SUFFICIENT

 S. 1748                             3

 FACTS HE OR SHE SEEKS TO VACATE AND WOULD HAVE THE CONSEQUENCE OF DEPOR-
 TATION, REMOVAL, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL
 OF  NATURALIZATION.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED AS
 PREVENTING  THE  COURT,  IN  THE  SOUND  EXERCISE OF ITS DISCRETION FROM
 SETTING ASIDE THE JUDGMENT OF CONVICTION AND PERMITTING THE DEFENDANT TO
 WITHDRAW HIS OR HER PLEA. THE DEFENDANT SHALL NOT  BE  REQUIRED  AT  ANY
 TIME  DURING  THE  PROCEEDINGS OR AT THE TIME OF THE PLEA TO DISCLOSE TO
 THE COURT HIS OR HER LEGAL STATUS IN THE UNITED STATES.
   § 5. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.

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Senate Bill S1748

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Sponsored By

Luis R. Sepúlveda